Powers of enduring attorneys

Meaning of terms

A dictionary in schedule 3 defines particular words used in the POA Act.

In simple terms:

• An Enduring Power of Attorney (EPA) is a formal document used by an adult (the principal) to authorise one or more persons (the attorneys) to make personal and/or financial decisions on the principal’s behalf if the principal lacks capacity to make those decisions.

• An attorney under an EPA means a person authorised to make decisions on behalf of another person.

• A principal under an EPA means a person who appoints an attorney to make decisions on that person’s behalf.

• Power for a matter means power to make all decisions about that matter.

• A person’s capacity for a matter means the person is capable of:

• understanding the nature and effect of decisions about the matter; and
• freely and voluntarily making decisions about the matter; and
• communicating the decisions in some way.

• A person’s impaired capacity for a matter means the person does not have capacity to make decisions about the matter.

General powers of enduring attorneys

• An attorney’s power for a matter is limited by the terms of the EPA granting that power.
• A principal can, for example, specify conditions and instructions in an EPA about when and how the attorney is to exercise a power given by the principal.

• A person should carefully read the EPA presented by the attorney to ensure he or she has the necessary power to act for the principal in a matter.

• Unless the EPA expressly states otherwise, an attorney is deemed to have maximum authority for a matter.

• If a principal does not want an attorney to have powers for all financial and personal matters, the EPA must expressly state for what matters the power is being granted. For example, if an EPA simply states “I appoint Mary as my attorney”, Mary has power for all financial and personal matters for the principal (s 77 POA Act).

• When an attorney exercises a power authorised by a principal, the attorney must exercise that power in a way that complies with relevant general principles and duties. (see Duties of enduring attorneys and Remedies for breaches by enduring attorneys)

Decisions that attorneys for all financial matters can make

Power for financial matters An attorney for all financial matters has power to make decisions for a principal about a number of financial and property matters, including one or more of the following (Schedule 2 POA Act):

• withdrawing from or depositing money into the principal’s bank account;
• paying maintenance and accommodation expenses for the principal;
• paying the principal’s debts;
• receiving and recovering money owed to the principal;
• carrying on a trade or business of the principal;
• performing contracts entered into by the principal;
• discharging a mortgage over the principal’s property;
• paying rates, taxes, insurance premiums or other outgoings for the principal’s property;
• preserving or improving the principal’s estate;
• undertaking a real estate transaction or a transaction involving the use of the principal’s property as security for the benefit of the principal; and
• legal matters relating to the principal’s financial or property matters.

Decisions that attorneys for all personal matters can make

Powers for personal matters An attorney for all personal matters has power to make decisions about a principal’s care and welfare, including for one or more of the following matters (Schedule 2 POA Act):

• daily issues such as diet, dress and general care;
• living, work and education arrangements for the principal;
• legal matters not relating to the principal’s financial or property matters (for example, applying for a domestic violence protection order for the principal);
• whether to consent to a forensic examination of the principal; and
• health care (other than special health care) by a health provider to diagnose, maintain and treat the principal’s physical and mental health.

When making health care decisions for a principal, an attorney must consider if the principal made an Advance Health Directive specifying the principal’s wishes about future health care. Directions made by the principal in an Advanced Health Directive will have priority over the attorney’s power for a health matter (section 35 POA Act).

If an EPA does not give an attorney power to make health care decisions for a principal, a statutory health attorney can make a decision for a principal with impaired capacity for a health matter (see GAA – Types of substituted decision making).

Decisions that attorneys for all personal matters cannot make

Special personal matters An attorney for all personal matters does not have power to make decisions for a principal about special personal matters regarding (Schedule 2 POA Act):

• making or revoking the principal’s will;
• making or revoking an enduring document of the principal;
• exercising a principal’s right to vote in a election or referendum;
• consenting to a principal’s marriage, civil partnership or sexual relationship, or to a dissolution of a marriage or civil partnership;
• adoption of a child of the principal;
• surrogacy arrangements for the principal;
• entering a plea on a criminal charge for the principal; and
• cultural recognition orders under the Meriba Omasker Kaziw Kazipa (Torres Strait Islander Traditional Child Rearing Practice) Act 2020.

Special health matters An attorney for all personal matters does not have power to make decisions for a principal about special health matters regarding (Schedule 2 POA Act):

• removal of tissue from the principal while alive for donation to someone else;
• sterilisation and termination of a pregnancy;
• participation in special medical research or experimental health care;
• electroconvulsive therapy or psychosurgery; and
• special health care prescribed under the Guardianship and Administration Act 2000 (Qld).

Certain special personal matters and special health matters may be authorised by QCAT or the Supreme Court.

Other powers of enduring attorneys

Right to information An attorney can access all the information that the principal would have been entitled to access if the principal had capacity, if the attorney needs such information to make informed decisions authorised by the principal (section 81 POA Act).

Confidentiality If an attorney receives confidential information on behalf of a principal, the attorney must respect the principal’s right to confidentiality and only disclose such information to the extent necessary to protect the principal’s interests.

Execution of documents An attorney may execute a document on behalf of a principal, with the attorney’s own signature or seal, if that is necessary or convenient for the exercise of a power given to the attorney by the principal. The document must be executed in a way that shows that the attorney executed it as attorney for the principal (section 69 POA Act).

Reimbursement and remuneration An attorney is not entitled to remuneration or a wage for acting for a principal. However, an attorney is entitled to be reimbursed by the principal for reasonable out-of-pocket expenses incurred in performing the attorney’s duties (for example, photocopying charges and reasonable travelling expenses).

An attorney may not have the right to reimbursement for out-of-pocket expenses if:

• the attorney is acting in a way not authorised in the EPA;
• the attorney is in breach of his or her duties; or
• the expenses are not reasonable having regard to all circumstances, including the principal’s financial position.

Gifts An attorney can give a gift or donate on behalf of a principal only if (section 88 POA Act):

• the gift or donation is of the nature of the principal made when the principal had capacity; or
• of the nature the principal might reasonably be expected to make; and

the value of the gift is reasonable having regard to all circumstances, in particular the principal’s financial position.

 

An attorney who is named a beneficiary under a will of the principal is not entitled to the inheritance until after the principal’s death.

Certain gifts may be a conflict transaction that must be authorised by QCAT or the Supreme Court before they are given (EPA 3 – Duties of enduring attorneys).

Maintaining principal’s dependants – an attorney for financial matters may provide for the needs of a principal’s dependants from the principal’s estate. However, what is provided must not be more than what is reasonable having regard to all circumstances, in particular the principal’s financial position (section 89 POA Act).

Certain maintenance payments may be a conflict transaction that must be authorised by QCAT or the Supreme Court before they are made (see EPA – Duties of enduring attorneys).

Investments An attorney for financial matters can make an investment for a principal (section 84 POA Act):

• if the investment has been authorised by QCAT or the Supreme Court; or
• which, if the investment were of trust funds by a trustee, would be an investment by a trustee exercising a power of investment under the Trusts Act 1973, guided by the prudent person rule (see sections 22 to 24 of the Trusts Act 1973).

If when an EPA commences a principal already had investment arrangements in place, an attorney for financial matters can generally continue those investments (section 84 POA Act). However, the attorney must invest with reasonable diligence, making prudent financial decisions to protect the principal’s interests (section 66 POA Act).

Can an attorney’s power change after the EPA commences?

QCAT or the Supreme Court may make orders about the powers that a principal is granted to an attorney (Chapter 6, POA Act). This could occur, for example:

• if an attorney is not discharging his or her duties;
• if a guardian and/or administrator is appointed for the principal;
• if a principal did not have capacity to make the EPA;
• if an EPA does not comply with the requirements of the POA Act;
• if a principal was induced to make the EPA by dishonesty or undue influence; and
• if a principal’s or other circumstances have changed since the EPA was made and the terms of the EPA are no longer appropriate to protect the principal’s interests.

What if there is more than one attorney?

• An EPA can state how attorneys are to share the power given to them by the principal. For example, jointly (unanimously), severally (independently), jointly and severally, or by majority.
• If a principal appoints more than one attorney for a matter, and the EPA does not state how the attorneys are to share the power given to them, the attorneys are jointly appointed and must make decisions for the principal unanimously (section 78 POA Act).
• It is important to keep in mind that an EPA is an instrument created to protect the rights and interests of a principal. If an EPA is not working for a principal, for example because of a family conflict preventing joint attorneys from making decisions in a timely and objective manner, the powers of an attorney may be removed and an appropriate independent decision-maker may be appointed.

This resource is current as of 30 June 2023

The information in this resource is for general information purposes only and should not be relied on as legal advice. If you need legal advice, please contact LawRight or another lawyer. LawRight can only give advice to people who are eligible for our services.